Citation Nr: 1007576
Decision Date: 03/01/10 Archive Date: 03/11/10
DOCKET NO. 03-28 767 ) DATE
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)
On appeal from the
Department of Veterans Affairs Regional Office in Reno,
Nevada
THE ISSUES
1. Entitlement to service connection for bilateral shoulder
disability.
2. Entitlement to service connection for a sleep disorder,
to include on a secondary basis.
REPRESENTATION
Appellant represented by: Judy J. Donegal, Attorney
ATTORNEY FOR THE BOARD
Thomas H. O'Shay, Counsel
INTRODUCTION
The Veteran had active military service from September 1969
to May 1971, and from December 1975 to December 1978.
In an April 2002 rating decision, the Department of Veterans
Affairs (VA) Regional Office (RO) in Lincoln, Nebraska,
determined that new and material evidence had not been
submitted to reopen the claim of service connection for
bilateral shoulder disability. The RO in Reno, Nevada, has
processed the case since that time, and the Veteran appealed
the April 2002 decision to the Board of Veterans' Appeals
(Board).
In a January 2005 rating decision, the Reno RO denied service
connection for a sleep disorder. The Veteran perfected his
appeal of that rating decision in June 2006.
In a March 2006 decision, the Board determined that new and
material evidence had been presented to reopen the claim of
service connection for bilateral shoulder disability, and
remanded the issue for further development.
In a February 22, 2008, decision, the Board denied service
connection for bilateral shoulder disability; the Board did
not address the matter of service connection for a sleep
disorder as the RO had not certified that issue for appellate
review, pending additional development. The Veteran appealed
the February 2008 decision to the United States Court of
Appeals for Veterans Claims (Court), and in a June 2009
Order, the Court granted a Joint Motion for Remand filed by
the parties, and vacated and remanded the case to the Board.
Following return of the case to the Board, the record
reflects that the RO has certified the sleep disorder issue
to the Board for appellate action. For this reason, the
Board has listed both issues on the title page of this
action.
In a July 2009 statement, the Veteran raised the issues of
entitlement to an increased rating for cervical spine
disability and entitlement to a total disability rating based
on individual unemployability due to service-connected
disabilities. The record reflects that both issues are
currently under development by the RO.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
Turning first to the bilateral shoulder issue, the Joint
Motion essentially determined that the Board did not
adequately consider the Veteran's own statements concerning
the onset and continuity of his shoulder symptoms.
Unfortunately, however, the Board must first remand the case
for additional procedural action. In this regard the record
reflects that since the Board's February 2008 decision,
additional pertinent medical evidence, in the form of VA
treatment records covering the period through May 2009, was
received. Neither the Veteran nor his attorney
representative has waived the Veteran's right to initial RO
consideration of that evidence. A remand therefore is
required in this matter. See 38 C.F.R. § 20.1304(a) (2009).
As to the sleep disorder issue, the Board first notes that
although the Veteran was represented by a Veterans Service
Organization for much of his appeal of that matter, in June
2009 the Veteran submitted a VA Form 21-22a signed in favor
of his attorney representative. In completing the form, the
Veteran did not purport to limit the attorney's
representation to the bilateral shoulder issue.
Consequently, the attorney now represents the Veteran with
respect to the sleep disorder claim as well, and the RO
should ensure that the attorney is kept apprised of
developments in the Veteran's appeal of that matter.
Turning to the substantive aspects of the sleep disorder
claim, the Veteran contends that the pain from his service-
connected cervical spine disorder has caused or aggravated a
sleep disorder. The medical records on file, although
documenting complaints of sleep problems, do not include any
assessments of an actual sleep disorder.
The Veteran was examined by VA in July 2009. After examining
the Veteran the examiner offered two separate sets of
conclusions within the same examination report. In the first
set of conclusions, she diagnosed the Veteran as having a
sleep disruption from pain induced by his cervical spine
disorder; she indicated that the "problem associated with
this diagnosis" was a "sleep disorder." In the second set
of conclusions, she indicated, under the category for
reporting diagnoses, that the Veteran did not have sleep
apnea or narcolepsy. The examiner went on, however, to offer
an opinion that it was at least as likely as not that the
Veteran's "sleep disorder" was aggravated by the cervical
spine pain.
Given the contradictory indications by the examiner as to
whether the Veteran in fact has a sleep disorder, the Board
finds that another VA examination of the Veteran is
necessary.
Accordingly, this case is REMANDED to the RO for the
following actions:
1. The RO should contact the Veteran,
through his representative, and request
that he identify the names, addresses and
approximate dates of treatment for all
health care providers, VA and private who
may possess additional records pertinent
to his claims. With any necessary
authorization from the Veteran, the RO
should attempt to obtain and associate
with the claims files any medical records
identified by the Veteran which have not
been secured previously.
2. If the RO is unsuccessful in
obtaining any medical records identified
by the Veteran, it should inform the
Veteran and his representative of this
and ask them to provide a copy of the
outstanding medical records.
3. The Veteran should be afforded a VA
examination by a physician with
appropriate expertise, preferably one who
has not previously examined the Veteran,
to determine the nature and etiology of
any sleep disorder. All indicated
studies, tests and evaluations deemed
necessary should be performed. The
examiner should specifically indicate
whether the Veteran has a sleep disorder.
With respect to any sleep disorder
identified, the examiner must opine
whether it is at least as likely as not
that such disorder is etiologically
related to the Veteran's periods of
active service, or was caused or
chronically worsened by service-connected
disability (i.e. cervical spine
disability, pilonidal cyst, or left wrist
ganglion cyst). The claims folders must
be made available to the examiner for
proper review of the medical history.
4. The RO should then readjudicate the
issues on appeal. If the benefits sought
on appeal are not granted in full the RO
must issue a supplemental statement of
the case, which should include
consideration of all evidence added to
the record since the last supplemental
statement of the case for each respective
issue, and provide the appellant and his
representative an opportunity to respond.
After the Veteran and his representative have been given an
opportunity to respond to the supplemental statement of the
case and the period for submission of additional information
or evidence set forth in 38 U.S.C.A. § 5103(b) (West 2002)
has expired, if applicable, the case should be returned to
the Board for further appellate consideration, if otherwise
in order. By this remand, the Board intimates no opinion as
to any final outcome warranted. No action is required of the
Veteran until he is notified by the RO. The Veteran and his
representative have the right to submit additional evidence
and argument on the matters the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This case must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the Court for additional development or other appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2009).